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Sustained Outrage

The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.

The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.

Readers who followed the continuing water crisis in West Virginia may remember the face of the federal official standing at Gov. Earl Ray Tomblin’s podium in the photo above. Or maybe we should say the former federal official — because Dr. Tanja Popovic has apparently resigned her post as director of the U.S. Center for Disease Control’s National Center for Environmental Health.

The head of a federal agency that investigates health problems linked to toxic-waste sites has stepped down after a clash with former Marines who believe their families were harmed by poisoned drinking water at Camp Lejeune.

Tanja Popovic’s sudden resignation followed a tumultuous seven weeks as acting director of the Agency for Toxic Substances and Disease Registry, a division of the Centers for Disease Control and Prevention, during which she assured West Virginia residents that their water was safe to drink after a toxic chemical spill in January, questioned the need for a study of cancers that may be linked to Camp Lejeune’s tainted water, and sent scolding emails to aides of lawmakers on Capitol Hill.

The story continues:

Popovic also had some tense email exchanges with the leader of a group advocating for victims of Camp Lejeune’s contamination, former Marine Master Sgt. Jerry Ensminger, in which she accused Ensminger and his colleagues of sending messages that contained “disrespectful, condescending, and even offensive content.”

“I take attacks on my professional and personal integrity very seriously,” Popovic wrote to Ensminger on March 12, “and I am profoundly saddened to see that you will stop at nothing.”

The friction culminated in a meeting on Capitol Hill last week between staff of lawmakers concerned about Popovic’s handling of Camp Lejeune issues and congressional liaisons for Popovic’s division, the CDC, and the Department of Health and Human Services, which oversees both agencies. That meeting included aides to the two senators from North Carolina, where Camp Lejeune is located, as well as Rep. John Dingell, D-Mich., author of the federal law that established the agency Popovic ran.

The next business day, Popovic’s resignation was announced in an email to top managers at the CDC, headquartered in Atlanta.

A spokeswoman for the CDC, Bernadette Burden, said she could only confirm that Popovic’s tenure as acting director of the agency began on Jan. 26 and ended Monday. “It’s a personnel matter,” Burden said, so no information about the resignation would be discussed.

Reached at her home in Stone Mountain, Ga., the scientist who worked for the federal government for 25 years declined to comment. “I would not like to make any comments, thank you,” Popovic said before hanging up.

DHHR lawyers seem more than a little upset that the citizens who filed this legal action — citing the wording of a Gazette headline — alleged that the DHHR and other top state officials have basically “ignored” the CSB recommendation. Here’s what DHHR lawyers wrote:

Petitioners blame the DHHR respondents for ‘ignoring recommendations from the Chemical Safety Board in 2011 regarding the potential prevention of future chemical incidents following the tragic 2008 chemical explosion in South Charleston. Petitioners cite a January 2014 newspaper article for the proposition that “the secretary of the DHHR reported that neither it, nor DEP, would follow the CSB recommendation … That article reports that the then-DHHR Secretary, Michael Lewis, stated to the CSB that his agency did not ‘have the expertise in-house to draft the appropriate legislation that would be needed to develop the type of program suggested in your report.’

As the statement from former Secretary Lewis shows, the decision to implement the CSB recommendations was not solely within the DHHR Respondents’ discretion, as Petitioners suggested, but would have instead required legislative action. In fact, following the CSB recommendations, DHHR continued efforts to implement the recommended chemical safety measures. For example, on April 12, 2013, an email from then-DHHR Secretary Rocco Fucillo recognized that DHHR and [DEP] had engaged in ‘considerable discussion about the logistics and feasibility of establishing such a program.’

Then-Secretary Fucillo explained that ‘since DHHR has neither the capacity, resources, nor expertise to undertake such a program, and because several other state, federal and local agencies are also recommended to take action (and in fact have some responsibility in this area), we believe the appropriate course of action would be a legislative study on the need for a program of this nature. Attached to the email was a draft resolution that DHHR intended to introduce during the 2014 legislative session.’

And here’s the kicker:

…It is thus a gross mischaracterization for Petitioners to suggest that the DHHR Respondents — professionals who diligently advocate for the health and well-being of West Virginians — would “ignore” any safety recommendation from federal regulators.

OK. First of all, the 2008 explosion that led to the CSB recommendation happened in Institute, not South Charleston.

Frank Kulick, adjusts a display of wooden crosses, and a Jewish Star of David, representing the victims of the Sandy Hook Elementary School shooting, on his front lawn, Monday, Dec. 17, 2012, in Newtown, Conn. (AP Photo/David Goldman)

As Saturday’s one-year anniversary of the massacre at Sandy Hook Elementary School in Newtown, Conn., approaches, it’s worth looking at the latest scorecard on state gun safety legislation from the Law Center to Prevent Gun Violence and the Brady Campaign, which explains:

Since Newtown, so much has changed. The slaughter of innocent children at Sandy Hook Elementary School sent shockwaves through the nation and ignited a passionate call for our leaders to take steps to prevent gun violence. When Congress failed to pass any new gun violence prevention legislation in 2013, including the overwhelmingly popular legislation to expand background checks, state legislatures answered the call.

Starting last January, legislators in state houses across the country began introducing a record number of bills to strengthen gun laws. Even states with historically weak gun laws, like Florida, Missouri, and Texas, took action towards sensible gun legislation. In fact, twenty-one states enacted new laws to curb gun violence in their communities, with eight of these states passing major reforms—far eclipsing the corporate gun lobby’s limited success in state legislatures in 2013.

In the grading, West Virginia received an “F”. The ratings noted, among other things two piece of legislation that passed this year that weaken gun regulation:

In 2010, West Virginia had the 13th highest number of gun deaths per capita among the states. In addition, based on data published by Mayors Against Illegal Guns, in 2009, West Virginia supplied the 2nd highest number of crime guns to other states per capita, and the state exports far more crime guns than it imports.

This image provided by the West Virginia State Police shows a fireball erupting across Interstate 77 from a gas line explosion in Sissonville, W. Va., Dec. 11, 2012. (AP Photo/West Virginia State Police)

The U.S. Energy Information Administration is reporting in the latest edition of its “Today in Energy“:

A notable increase since early 2012 in natural gas production in West Virginia and nearby counties in southern Pennsylvania continued through July 2013. Although producers have increasingly shifted their attention to more liquids-rich shale gas in the wet gas regions of these states, production in the dry gas regions has benefitted from the addition of infrastructure, improving takeaway capacity from their gas fields.

From July to September last year, the following projects expanded the production capacity of West Virginia and southern Pennsylvania by almost 1 billion cubic feet per day (Bcf/d):

July 2012: Equitrans placed its Sunrise Project into full service, with capacity to carry 0.31 Bcf/d from Wetzel County, West Virginia, to Greene County, Pennsylvania, and providing access to five separate interconnections serving Mid-Atlantic consumers.

Only a small fraction of America’s vast network of natural gas and hazardous liquid pipelines has undergone any sort of inspection in recent years, including several hundred pipelines which have spilled or broken down, according to federal records displayed today by Public Employees for Environmental Responsibility (PEER). As a result, the safety and reliability of much of this key but volatile transport grid remains unknown.

Records obtained from the he Pipeline and Hazardous Materials Safety Administration (PHMSA) by PEER under the Freedom of Information Act reveal that –

Of the more than 2.6 million oil, natural gas and propane pipeline miles regulated by PHMSA less than a fifth (583,692) has been inspected by federal or state officials since 2006;

Another 132,300 miles has been inspected by their operators during that same period but PHMSA cannot say whether any industry inspections have been independently reviewed; and

Since 2006, there have been more than 300 incidents, such as a spill, explosion or breakdown, which triggered no follow-up inspection

This Thursday, April 18, 2013 aerial photo shows the remains of a nursing home, left, apartment complex, center, and fertilizer plant, right, destroyed by an explosion in West, Texas. There were no sprinklers. No firewalls. No water deluge systems. Safety inspections were rare at the fertilizer company in West, Texas, that exploded and killed at least 14 people this week. (AP Photo/Tony Gutierrez, file)

Despite getting far less media attention than the Boston Marathon bombing last week, the terrible explosion of a fertilizer facility in Texas has begun to prompt some strong reporting about the many gaps in our nation’s system to protect workers (not to mention folks who live near dangerous industries). For a few examples, check out here, here and here.

Each worker killed is a tragic loss to the community of family, friends and co-workers – and the worst part is, these deaths were largely preventable. Simply by following proven safety practices and complying with OSHA standards, many of these more than 4,600 deaths could have been avoided. But as companies decry regulations and emphasize profits over safety, workers pay the ultimate price.

I’m looking forward to hearing from all of our witnesses next week. Our policy decisions and industry practices should always be driven by the real life implications of our work. One witness, Sue Bonham of Sissonville, will share her personal experiences that underscore the importance for all of us to continue our efforts to work toward improved safety across the board.

The Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) has an opportunity to improve the ability of pipeline operators to respond to incidents by developing a performance-based approach for incident response times. The ability of transmission pipeline operators to respond to incidents–such as leaks and ruptures–is affected by numerous variables, some of which are under operators’ control. For example, the use of different valve types (manual valves or “automated” valves that can be closed automatically or remotely) and the location of response personnel can affect the amount of time it takes for operators to respond to incidents. Variables outside of operators’ control, such as weather conditions, can also influence incident response time, which can range from minutes to days. GAO has previously reported that a performance-based approach–including goals and associated performance measures and targets–can allow those being regulated to determine the most appropriate way to achieve desired outcomes. In addition, several organizations in the pipeline industry have developed methods for quantitatively evaluating response times to incidents, including setting specific, measurable performance goals. While defining performance measures and targets for incident response can be challenging, PHMSA could move toward a performance-based approach by evaluating nationwide data to determine response times for different types of pipeline (based on location, operating pressure, and pipeline diameter, among other factors). However, PHMSA must first improve the data it collects on incident response times. These data are not reliable both because operators are not required to fill out certain time-related fields in the reporting form and because operators told us they interpret these data fields in different ways. Reliable data would improve PHMSA’s ability to measure incident response and assist the agency in exploring the feasibility of developing a performance-based approach for improving operator response to pipeline incidents.

The South Charleston Stamping Plant will be home to Gestamp, an $11 billion international automotive stamping company. Gazette photo by Chip Ellis

The big news in the Kanawha Valley this week has been the announcement of plans to reopen the Charleston Stamping Plant, creating perhaps as many as 700 jobs working for the company Gestamp at the facility in South Charleston. Media coverage made brief mention of a tax break plan passed by South Charleston to try to land the project:

The city council approved an ordinance last week that will cap the business and occupation tax at $365,000 a year for companies that meet certain criteria of employment numbers and revenue.

As for the tax incentive, it involves a credit against the local B&O tax, which the plant must meet certain sales and employment requirements to receive. The credit is for 50% or 25% of the B&O tax liability, depending on the number of years of operation. The amount of the tax that can be owed is also capped, at $365,000 per year for the life of the credit.

The credit would go into effect in the facility’s fifth year of production, if it has sales of $100 million and meets the employment requirements. It is impossible to know what the sales will be four years or 12 years down the road, so we are assuming that they are the minimum requirements set forth in the tax credit.

In short:

Over the time frame, the credit would reduce the amount of B&O taxes owed from $14.6 million to $10.4 million, a savings of $4.2 million

But, they explain:

The cap on the tax is actually more valuable than the credit over the life of the credit … with the cap in place, the facility would only owe $5.1 million, an additional savings of $5.3 million. This is because, beginning in year 9, the amount of tax owed is greater than the $360,000 cap. So while the credit falls from 50% to 25%, the size of the tax break actually increases, due to the cap.

The Center concluded:

To be clear, this analysis is not suggesting that this isn’t a “good deal” for the state. We think it is great that there is a possibility of creating new good paying jobs. Like we’ve said a million times, we are all for a strong economy and for government to play a smart role in economic development. Our only aim with this post is to shed some light on what the fiscal impact might be on the deal. Since these job subsides are taxpayer funded, the public has a right to know the costs and benefits. While history shows that deals like these often go sour, we hope it not only works out but that it revitalizes auto parts manufacturing in the region.

But now, the Gazette has revealed much more information about the settlement in this new story — and we’ve posted copies of the medical monitoring settlement and the property cleanup settlement online. We’ve also posted a legal brief in which lawyers for current and former Nitro residents outline the terms of the deal and urge its approval by the court. Among other things, Charleston attorney Stuart Calwell argues:

The Settlement Agreements provide for ample funding to accomplish its goals. The Funds created by the Settlement Agreements will pay for medical testing and residential cleanup for potentially thousands of West Virginians. Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup. The Class Settlements provide both.

One reason that details of the settlement have been hard to come by is that the two judges who have handled the case — Putnam Circuit Judge O.C. Spaulding and Mercer Circuit Judge Derek Swope (appointed by the Supreme Court to hear the case after Spaulding recused himself) — have imposed broad gag orders on the lawyers for both sides. The local circuit clerk hasn’t made it any easier. The Gazette had to file a formal Freedom of Information Act request to get electronic copies of the settlement documents that we’ve posted online (the clerk wanted to charge us $1 per page for the .pdf files, an amount that we didn’t believe was “reasonably calculated to reimburse it for its actual cost in making reproductions of such records” under the state FOIA).

Interestingly, on Monday, one lawyer in the case filed this motion asking Judge Swope to lift the current gag order. Attorney Tom Urban has clients who are members of the class covered by the settlement, but his firm is not the “class counsel” and didn’t work out the settlement. Urban has raised some questions about the deal, and told the judge that, with the settlement, the reasons for any gag order have evaporated:

The original purpose of the gag order was to ensure that the prospective jury would not be tainted by information that would affect their ability to properly exercise its role in an unbiased manner, and the order was subsequently expanded further on the eve of jury selection. Now that this Court released the jury during a hearing on February 24, 2012, the exercise by counsel and others under the First Amendment to discuss the settlement with all interested persons, including absent class members, the public, and the press, no longer caries with it the substantial likelihood of materially prejudicing those proceedings.

As a result, those various gag orders must be lifted or they run afoul of the First Amendment and themselves risk prejudicing these proceedings by inhibiting communication by all sides concerning the fairness, reasonableness, and adequacy of the proposed class settlement.

There’s a new report out from a coalition of environmental, good-government and deficit hawks that says one way to cut federal spending and help with the deficit is to end certain energy industry subsidies.

Ending a third of a trillion dollars in environmentally harmful subsidies could go a long way toward solving our nation’s budget challenges.

[The report] provides a roadmap to saving up to $380 billion over five years by curbing wasteful spending that harms the environment. That amounts to a full quarter of the savings the new congressional Super Committee has been charged with obtaining, in half the time.

The report, issued by progressive environmental group Friends of the Earth, deficit hawk Taxpayers for Common Sense, consumer watchdog Public Citizen and free-market think tank The Heartland Institute, propose cutting many fossil fuel, nuclear and alternative energy subsidies. Other targets include massive giveaways of publicly owned timber, poorly conceived road projects and a bevy of questionable Army Corps of Engineers water projects.

Ryan Alexander, president of Taxpayers for Common Sense, said:

These common sense cuts represent the lowest of the low hanging budgetary fruit. Lawmakers across the political spectrum should be scrambling to eliminate these examples of wasteful spending and unnecessary tax breaks that are squandering our precious tax dollars while the nation is staring into a chasm of debt.